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1976 Supreme(Ori) 31
High Court Of Orissa
R. N. Misra And N. K. Das, JJ.
MAYA MUKHERJEE - Appellant
Versus
THE ORISSA CO-OPERATIVE INSURANCE SOCIETY LTD. - Respondent
A. H. O. 42 Of 1975
Decided On : 07/01/1976
G.B.MOHANTY, R.C.PATNAIK, S.K.PATNAIK
The doctrine of contributory negligence applies in cases where both parties are negligent and their negligence contributes to the accident.
Headnote:
MOTOR VEHICLES ACT - SECTION 95(2), 96, 110-D - ACCIDENT - CONTRIBUTORY NEGLIGENCE - QUANTUM OF COMPENSATION - APPORTIONMENT OF RESPONSIBILITY - LIABILITY OF INSURER.
Fact of the Case:
A motorcyclist and a car collided at an intersection, resulting in the death of the motorcyclist. The heirs of the motorcyclist filed a claim for compensation under the Motor Vehicles Act, alleging that the accident was caused by the negligence of the car driver. The owner of the car and the insurer contested the claim, arguing that the motorcyclist was solely responsible for the accident.
Finding of the Court:
The court found that both the motorcyclist and the car driver were negligent, but that the motorcyclist was more to blame for the accident. The court held that the car driver had the right of way and that the motorcyclist should have waited to allow the car to pass. However, the court also found that the car driver had the last opportunity to avoid the accident and failed to do so.
Issues: 1. Whether the accident was caused by the negligence of the car driver or the motorcyclist. 2. Whether the doctrine of contributory negligence applies in this case. 3. What is the quantum of compensation payable to the heirs of the motorcyclist? 4. Who is liable to pay the compensation, the owner of the car or the insurer?
Ratio Decidendi: 1. The court held that both the motorcyclist and the car driver were negligent, but that the motorcyclist was more to blame for the accident. The court reasoned that the car driver had the right of way and that the motorcyclist should have waited to allow the car to pass. However, the court also found that the car driver had the last opportunity to avoid the accident and failed to do so. 2. The court held that the doctrine of contributory negligence applies in this case. The court reasoned that both the motorcyclist and the car driver were negligent and that their negligence contributed to the accident. 3. The court held that the quantum of compensation payable to the heirs of the motorcyclist is Rs. 30,000. The court reasoned that the motorcyclist was more to blame for the accident and that the compensation should be apportioned accordingly. 4. The court held that the insurer is liable to pay the compensation. The court reasoned that the car is a private car and that there is no limit fixed for the insurer's liability under Section 95(2) of the Motor Vehicles Act.
Final Decision: The court allowed the appeals of the claimants and directed the insurer to pay compensation of Rs. 30,000 to the heirs of the motorcyclist. The court also awarded interest on the compensation at the rate of 6% per annum from the date of the Tribunal's decision till three months hence and further interest at the rate of 9% per annum thereafter.
R. N. MISRA, J.
( 1 ) AT about 1. 00 P. M. on 29-5-1970, one Asis Mukherjee, then employed as an accountant of the United Bank of India, Bhubaneswar Branch, while proceeding on a motor cycle to office from his residence emerged from a side lane into the main road in Unit No. III of New Capital area of Bhubaneswar running by the side of the then Chief Minister's official residence and one Raghu Swain was being carried on the backside of the said motor cycle. At that time on the main road running from the railway station to the Secretariat and passing in front of the then Chief Minister's official residence, an ambassador car bearing registration No. ORP 2186 of M/s. Indersons Construction, Bhubaneswar, was being driven by its driver in which O. P. W. 1 Abhoy Charan Mohanty, an employee of the owner of the vehicle, was the sole occupant. At the intersection of the roads towards the extreme left, the motor cycle dashed against the right side of the motor car as a result of which Mukherjee sustained multiple injuries and ultimately succumbed and Swain suffered injuries but survived. The motor car had been insured with the Orissa Co-operative Insurance Society Limited as required by the Motor Vehicles Act. Two independent claim cases were filed before the Motor Accident Claims tribunal, Puri -- one by the widow and the major son of Mukherjee and the other by Raghu Swain. Raghu Swain's claim case has already become final and we shall not refer to it any more. In the claim case by Mukherjee's heirs, compensation of rupees one lakh was claimed, on the plea that the entire blame for the unfortunate event lay on the shoulders of the driver of the motor vehicle and the sudden death of Mukherjee had brought about loss to the family to that extent.
( 2 ) BOTH the owner of the motor car as also the insurer entered contest. The owner of the vehicle alleged that the car was being driven very cautiously and at a reasonable speed while the motor cycle was being driven in a rash way. The driver of the car took prompt steps for the treatment of the deceased and the other person and informed the police station with equal promptitude about the incident. As Mukherjee was solely responsible for his own death, his heirs are not entitled to lay any claim for compensation. The insurer adopted the plea of the car owner in so far as the plea regarding rash and negligent driving of the motor cycle was concerned and pleaded that the motor car was being driven with due care and caution. It was further pleaded that nothing was due and if the claim was at all to succeed, the amount demanded was arbitrarily excessive. It was further pleaded that the accident was not covered under the terms of the policy and, therefore, the insurer had no liability.
( 3 ) ON the side of the claimants, four witnesses in all were examined while the insurer and the car owner examined one witness each. The Motor Accident claims Tribunal came to hold that (i) the accident took place on account of negligence of both the motor-cyclist and the car driver and, therefore, the doctrine of contributory negligence was applicable; (ii) there was no acceptable evidence that the motor car was being driven rashly and negligently at the time of the accident; (iii) the claimants were entitled to compensation of Rupees 35,000/- and (iv) the claimants were entitled to interest at six per cent on the said amount from the date of decision till the date of recovery and liability of the insurer was limited to the extent provided under Section 95 (2) of the Motor vehicles Act.
( 4 ) TWO appeals (Miscellaneous Appeal No. 31 of 1973 by the insurer and miscellaneous Appeal No. 37 of 1973 by the car owner) were carried to this court under Section 110-D of the Motor Vehicles Act (hereinafter referred to as the 'act') and both these appeals along with two other appeals relating to the claim of Raghu Swain and others were disposed of by a common judgment dated 18th of July, 1975 by our learned brother Panda
